Chapman v Gibbo’s Transport Pty Ltd & Ors (No 2)

1. [1]

   The plaintiff Michael Chapman moves the court for orders that:-

   1. (1)

      Leave be granted to amend the plaintiff’s second amended statement of claim to add a claim in the alternative for damages under the Motor Accident Compensation Act 1999 (the MACA);

   2. (2)

      Leave be granted to proceed pursuant to section 109 of the MACA;

   3. (3)

      An order that the plaintiff has provided a full and satisfactory explanation for his delay within the meaning of sections 73 and 109 of the MACA; and

   4. (4)

      Costs.

Judgment of Adamson J dated 1 June 2022

1. [2]

   The procedural history of the matter is set out in full in the judgment of Adamson J, as her Honour then was, of 1 June 2022. On that date her Honour considered a notice of motion by the second defendant, Qube Logistics (SL) Pty Limited. It sought leave to amend its defence and the summary dismissal of the plaintiff’s second amended statement of claim on the basis that the plaintiff’s claim was prohibited by s 108 of the MACA on the grounds that the claim fell within s 3A of that Act (i.e., that the circumstances of the plaintiff’s accident were such that it was subject to the provisions of the MACA).

2. [3]

   Her Honour determined that where the characterisation of the alleged fault is unclear and may depend on contested evidence, it would be inappropriate to determine the matter on a notice of motion. Rather, it was a triable question that should be reserved for the final hearing. Thus, her Honour found that it was premature to determine whether s 3A of the MACA applied and whether the plaintiff was in breach of the prohibition in s 108, particularly in circumstances where the plaintiff had then submitted a claim form to QBE on 31 March 2022 under the MACA against the possibility that it may subsequently be held to apply.

3. [4]

   Her Honour granted leave to the second defendant to file an amended defence (relying upon s 3A) and otherwise dismissed the second defendant’s notice of motion.

4. [5]

   Before her Honour and before me, it was common ground that the plaintiff was at all material times employed by Gibbo’s Transport Pty Limited (the first defendant) and that the first defendant had contracted with the second defendant for the haulage of flour. On 1 August 2016, the truck which the plaintiff usually drove, and which was owned by the first defendant, was being repaired. A truck which was owned by the second defendant was allocated to the plaintiff. While the plaintiff was driving the truck, which was hauling flour from Manildra Flour Mills to Sydney, the truck rolled causing the plaintiff substantial injuries including a traumatic brain injury.

5. [6]

   Since her Honour’s judgment, the plaintiff has filed and served a third amended statement of claim naming QBE as the third defendant and pleading the MACA in the alternative, so that he no longer requires the leave sought in prayer 1 of his notice of motion.

6. [7]

   All procedural requirements of the MACA having been complied with (i.e., a claim form has been served on the insurer and the Personal Injury Commission issued an exemption certificate on 15 July 2022).

7. [8]

   The third defendant has rejected the plaintiff’s late claim on the grounds that the explanation for the delay is neither full nor satisfactory as required by s 109(3)(a) of the MACA.

8. [9]

   At the commencement of the hearing of the matter, Mr Catsanos SC, who appeared for the third defendant, called on a notice to produce to the plaintiff. Documents responsive to paragraphs (a) to (e) of the notice were produced by Mr de Meyrick who appeared on behalf of the plaintiff.

9. [10]

   Mr Parker, who appeared for the first defendant, and Mr Parker SC who appeared for the second defendant, took no active part in the proceedings before me which concerned only whether the plaintiff had provided the third defendant with a full and satisfactory explanation for the delay in commencing proceedings pursuant to s 109(3)(a) of the MACA. It was conceded by Mr Catsanos, appropriately, at the outset that due to the severity of the plaintiff’s injuries there was no issue with s 109(3)(b). I observe too that there was no issue about prejudice, actual or presumptive, caused by the delay which would mean that the third defendant could not have a fair hearing.

10. [11]

    As matters transpired, the third defendant ultimately conceded in oral submissions that the plaintiff’s explanation was full, so that the only issue for determination is whether the plaintiff’s explanation was satisfactory.

Relevant Legislation

1. [12]

   Section 109 of the MACA provides:-

2. [13]

   Section 66 (2) of the MACA defines the phrase “full and satisfactory” as follows:-

The Plaintiff’s Evidence

1. [14]

   The plaintiff relied on four affidavits which were read without objection in the proceedings. The first was of his solicitor John Hamish Giles Finney affirmed on 22 August 2022. The second and third were affidavits of the plaintiff affirmed on 10 August 2022 and 11 January 2023. The fourth affidavit was of the plaintiff’s wife Heidi Chapman affirmed on 15 February 2023. Each of the deponents was cross-examined. A letter of Mr Finney to the third defendant’s solicitor dated 8 February 2023 was also tendered by the plaintiff.

2. [15]

   In his affidavit, Mr Finney set out the entire procedural history of the matter. Relevantly, after being airlifted from Orange Base Hospital to Westmead Hospital on 1 August 2016, the plaintiff underwent a right frontotemporal craniotomy and an acute subdural haematoma was evacuated and an external ventricular drain was inserted. He suffered a traumatic brain injury, intracerebral contusions, a temporal bone fracture and lacerations and bruising. He was discharged on 24 August 2016 and admitted to Mount Wilga Rehabilitation Hospital where he remained until October 2016. He suffered a long period of post traumatic amnesia. He has remained under the care of various specialist and para-medical professionals.

3. [16]

   The plaintiff’s wife first attended Mr Finney’s office on 21 August 2016, when the plaintiff was still in Westmead Hospital. When cross-examined about that visit, Mr Finney said that he had a conversation about possible avenues of claim including a workers’ compensation claim, a common law claim and a motor accidents claim. He believed that he discussed the need to submit a motor accidents claim form within 6 months, which he agreed was the initiating document for a compulsory third party (CTP) claim. An email that was sent to Mrs Chapman on 24 August 2016 contains some brief advice (with no mention of any time limits) and which attached a “Green Slip Personal Injury Claim Form”, which was not completed. On 3 April 2017, a very brief follow up email was sent to Mrs Chapman by Mr Finney. Mrs Chapman did not reply. On 25 July 2017, another brief follow up email was sent to Mrs Chapman by Mr Finney which included the sentence “There are various time limits applicable and I can run through those with you if needs be”. Mrs Chapman did not reply. In cross-examination Mr Finney said that he was fairly sure that he had not spoken to Mrs Chapman about time limits in terms of commencing proceedings and was only concerned that a claim form had not been lodged. Mr Finney gave evidence, which I accept, that at the time there was nothing to suggest that the accident was anyone other than Mr Chapman’s fault and that the claim form was a “prophylactic measure”.

4. [17]

   On 21 August 2018, the plaintiff and his wife attended Mr Finney’s office. A letter dated 23 August 2018 was sent to the Chapmans after that meeting and was annexed to Mrs Chapman’s affidavit. It makes no mention of a motor accidents claim, but rather focuses on a workers’ compensation claim and by inference, a common law claim against the employer. In cross-examination, Mr Finney recalled having a discussion with the plaintiff and his wife about the viability of a CTP claim. Mrs Chapman told Mr Finney that she had not completed the claim form. Mr Finney expressed the view then that a CTP claim was not a realistic proposition because the plaintiff had been the single vehicle driver who had rolled over his vehicle, and that the time limit for submitting the claim form had passed. He could not recall talking to the Chapmans about time limits generally. Indeed he said that he had never communicated to them that there was a three year time limit with respect to a claim pursuant to the MACA.

5. [18]

   I accept that Mr Finney gave his evidence candidly.

6. [19]

   In due course the plaintiff received lump sum compensation, and proceedings were commenced against his employer for work injury damages in April 2020. Documents were produced on subpoena in those proceedings which caused Mr Finney to brief an expert and the second defendant was then joined to the proceedings. The second defendant would not consent to unlimited jurisdiction of the District Court and the matter was transferred to the Supreme Court in mid 2021. In July 2021 the second defendant served an amended defence which did not raise the MACA point. On 30 November 2021, the second defendant first raised the MACA point in correspondence. On 20 January 2022, Mr Finney sent an email to the Chapmans (annexed to Mrs Chapman’s affidavit) which was the first time that they were apprised of the second defendant’s revised position that the MACA applied.

7. [20]

   In her affidavit, Mrs Chapman says that a workers’ compensation form was lodged on behalf of her husband by the second defendant on 4 August 2016 after which he began receiving weekly payments of compensation. She agreed that she met Mr Finney at his office in Gosford on 16 August 2016. In cross examination, Mrs Chapman agreed that different options were discussed at that meeting and that a CTP claim was one of those options. Her recollection was that it was in August 2018 rather than 2016 that Mr Finney expressed a view that a CTP claim was not viable. She did not recall any discussion about time limits. She said that the first meeting was purely “advisory” and that she was not then in a fit state to seriously consider any advice, which I accept.

8. [21]

   During 2017, Mrs Chapman was attending to her husband’s and her children’s needs. They moved house. She was working 3-4 days per week. In cross-examination, she recalled receiving the follow up emails of April and July 2017 but could not recall reading anything at all about time limits.

9. [22]

   On 21 August 2018, Mrs Chapman attended Mr Finney’s office with her husband. She said that she was given advice then that as her husband was the only driver in the accident, a “green slip” claim was not viable as the system was fault based, and as her husband was driving the vehicle at the time and there were no other drivers involved, a claim would not be worthwhile. She received the email of 23 August 2018 referred to above. Mrs Chapman says that she did not discuss a “green slip” claim with anyone until she received the letter from Mr Finney dated 20 January 2022 referred to above.

10. [23]

    In cross-examination, Mrs Chapman said that during the meeting of 21 August 2018, the option of a CTP claim was discussed but that she was told that it was not viable. She accepted that advice. There was no discussion about whether a claim could be made out of time.

11. [24]

    In my view, Mrs Chapman gave her evidence frankly.

12. [25]

    The plaintiff’s affidavits were read. They annex a great deal of medical and financial material. He could only vaguely recall signing those documents. In cross-examination the plaintiff said that he had no recollection about what had occurred in the meeting of August 2018, that he could not honestly say if a motor accident claim was mentioned and that he relied on his wife to explain what had happened after meetings with his lawyers. There was no suggestion that his lack of memory was inconsistent with the brain injury he suffered in 2016.

The Third Defendant’s Evidence

1. [26]

   The third defendant relied on one affidavit which was read in the proceedings, that of its solicitor Mr Ian Jones of Sparke Helmore Lawyers sworn on 19 October 2022. He was not cross-examined by Mr de Meyrick. The affidavit contains several annexures including a Severe Injury Advice Form pursuant to the Lifetime Care and Support Scheme and applications for participation in that scheme on an interim and lifetime basis. In the end nothing turns on these documents. Mrs Chapman was not cross-examined about them and no submissions were made that they went to the satisfactoriness or otherwise of the explanation for the delay.

2. [27]

   In addition, three documents sent to Mrs Chapman by Mr Finney (dated 24 August 2016, 3 April 2017 and 25 July 2017) upon which Mrs Chapman was cross-examined were tendered by Mr Catsanos. Finally, a letter from Mr Jones to Mr Finney dated 20 February 2023, in reply to Mr Finney’s letter of 8 February 2023 was tendered by the third defendant.

The Plaintiff’s Submissions

1. [28]

   Mr de Meyrick provided an outline of written submissions on which he relied. That document was prepared prior to the third defendant’s concession with respect to the fullness of the explanation for the delay. In oral argument, he submitted that in August 2016, neither the plaintiff nor his wife were engaged as clients, which did not occur until August 2018. He said that in 2016 Mr Finney wrote that further investigations would need to be conducted about the accident and its cause, and that the provision of a claim form was part of an initial and cautious “scatter gun” approach. He further submitted that at the time of the first conference in 2018, Mr Finney had formed a not unreasonable view that because the accident was a single car rollover, where no fault could be attributed to another driver, a CTP claim was not viable. Indeed, Mr de Meyrick submitted that until the second defendant came to the view that its CTP policy might respond to the accident, no person held such a view. Thus, a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.

2. [29]

   As to the question of election, to which see below, Mr de Meyrick submitted that Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 (Itek) had no application, as in that case the claimant made a conscious and deliberate decision based on legal advice to let the limitation period expire. Further, he submitted that in this case the only decisions were made by the plaintiff’s wife as the “controlling mind”, and that the cases show that the focus must be on the claimant himself as the reasonable person. He submitted that it was clear that Mr Chapman cannot recall ever being told about bringing a motor accident claim and so he cannot be said to have ever made a conscious decision about foregoing one.

3. [30]

   Relevantly, in his written submissions, Mr de Meyrick said that in the circumstances of this particular case, the plaintiff has demonstrated that it is fair and just that leave should be granted.

The Third Defendant’s Submissions

1. [31]

   Mr Catsanos submitted that the guiding contemporary principles with respect to determining whether or not an explanation was full and satisfactory are to be found in Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 (Walker) when the Court of Appeal sat a bench of five to reconcile what were perceived to be inconsistencies in approach to the question of whether there was a full and satisfactory explanation for a delay pursuant to s 66(2) of the MACA. It is common ground that those principles have been applied on many occasions in cases that are largely “fact sensitive”. For example, in Karambelas v Zaknic (No 2) [2014] NSWCA 433 (Karambelas), Meagher JA (with whom Basten JA and Simpson J agreed) said at [16]-[17]:-

2. [32]

   In a recent decision of 26 October 2022, Stein v Ryden [2022] NSWCA 212 (Stein), Griffiths AJA, with whom Macfarlan and Gleeson JJA agreed, applied both Walker and Karambelas. At [32] to [39], his Honour provides a helpful survey of the authorities on the topic of what constitutes a full and satisfactory explanation for a delay.

3. [33]

   In this matter, it is apparent that whilst no tutor has been appointed, the plaintiff has relied upon his wife to make decisions for him, at least in the context of this litigation. He had no real recollection of any meeting with his solicitor and his cross-examination was therefore appropriately brief. In these circumstances, Mr Catsanos says that the court must rely upon the evidence of Mrs Chapman to make a determination as to the satisfactoriness of the explanation or otherwise, and he relies upon the comments of Allsop P in Walker at [97] to [101]:-

4. [34]

   I accept that in the circumstances of this case, notwithstanding that there has been no tutor appointed, I must also look to the evidence of Mrs Chapman in making a determination about whether the explanation proffered has been satisfactory such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. She has at all times been acting on her husband’s behalf because of the effects of his brain injury suffered at the time of the accident, which effects are continuing. So much was conceded by the plaintiff, his wife and Mr Finney.

5. [35]

   Mr Catsanos submitted that the plaintiff, through his wife, had made a conscious election not to pursue a MACA claim. The nub of his argument was that the plaintiff (through his wife) had consciously made a deliberate and informed decision in the period August 2016 to August 2018 to pursue his rights pursuant to the Workplace Injury Management Act 1998 (as against the first defendant) and the Civil Liability Act 2002 (as against the second defendant) and could not now elect to also pursue his rights pursuant to the MACA (as against the third defendant). In fact, those decisions came later: in April 2020 as against the first defendant, and October 2020 as against the second defendant.

6. [36]

   In particular, Mr Catsanos relied upon the comments of Handley AJA (as his Honour then was) in Walters v Cross Country Fuels Pty Limited [2009] NSWCA 10 (Walters) at paras [37] to [40], where his Honour discussed the issue of election in the context of the principles set out in Itek as follows:-

7. [37]

   Itek was a case concerning an extension of time pursuant to s 151D(2) of the Workers’ Compensation Act 1987. There the plaintiff made a deliberate decision, after receiving full legal advice from her solicitor and barrister on the issue, to allow the three year period pursuant s 151D(2) to expire. She then delayed a further two years before changing her mind. Ipp AJA, (Spigelman and Sheller JA agreeing, the latter with additional remarks) said at [98]:-

8. [38]

   Walters was a case concerning the application of ss 60C and 60E of the Limitation Act 1969. Campbell JA gave the lead judgment. Allsop P agreed with brief additional comments, as did Handley AJA. There the plaintiff filed a statement of claim almost 6 years after she had a slip and fall accident at a service station on her way to work. She received advice from a solicitor immediately after the accident who alerted the manager of the service station of the accident, and in 2003 exercised her rights with respect to workers’ compensation. Shortly thereafter, the solicitors wrote to the workers’ compensation insurer to the effect that she would not pursue the service station’s public liability insurer. New solicitors were engaged in 2006 and a letter of demand was sent to the then manager of the service station. Proceedings were commenced in 2007. Her former solicitors never advised the plaintiff about the existence of any limitation period, so that it could not be said that the plaintiff had made a deliberate decision to let it expire. The court agreed that the trial judge had correctly found that the defendant had suffered significant actual prejudice because of its inability to locate the one eyewitness and the vagueness of the memory of the service station manager.

9. [39]

   Mr Catsanos referred in passing to Nominal Defendant v Harris [2011] NSWCA 70; 57 MVR 492, which is a judgment of Whealy JA with whom Hodgson and McColl JJA agreed. In that case his Honour said at [51]:-

Consideration

1. [40]

   In my opinion, the present case is clearly distinguishable from Itek. Here, neither Mr or Mrs Chapman was given full and comprehensive legal advice about a motor accident claim or relevant limitation periods, so that it cannot be said, on the evidence before me, that a deliberate decision was made to allow a statutory limitation period to expire. Even if that were the case, I observe without deciding, that the fact central to this application for leave – the belated pleading of the second defendant – may well amount to “special circumstances” satisfactorily explaining the conduct of the plaintiff mentioned by Ipp AJA in Itek at [98].

2. [41]

   So far as the comments of Handley AJA in Walters are concerned, they were strictly obiter and are to be understood in the context of the facts of that particular case. In any event, in my opinion there was no deliberate decision not to sue pursuant to the MACA made by either Mr or Mrs Chapman.

3. [42]

   Further, this is not a case about an election and in that sense, it is distinguishable from both Itek and Walters. Rather, it concerns pleading a cause of action in addition to two that are already pleaded.

4. [43]

   In my opinion, taking into account the evidence before me, neither the plaintiff nor his wife were ever provided with full advice about making a claim pursuant to the MACA. Mrs Chapman was only aware – in August 2018 – about the time limit for forwarding a claim form. Mrs Chapman was then told that a “green slip” claim was not viable. Indeed, until January 2022, when the Chapmans were informed about the second defendant’s belated view that the MACA might apply, neither the claimant nor his wife had any advice, idea or information about the possible applicability of the MACA to the proceedings. I observe that up to November 2021, notwithstanding the involvement of many experienced solicitors and barristers over several years, no lawyer had ever considered that the MACA might apply to the instant proceedings. This fact, in the circumstances of this case, in my view is crucial in the assessment as to whether a reasonable person in the plaintiff’s position would have been justified in experiencing the delay. The plaintiff is essentially compelled to now join the third defendant, which he did expeditiously and without prejudice being occasioned to it.

5. [44]

   It follows that in my view, by reference to an objective standard and given Mr Chapman’s position, the delay that has occurred is reasonably justifiable: see Karambelas per Gleeson JA at [19]. I am therefore satisfied that the plaintiff has provided a satisfactory explanation within the meaning of s 66(2) of the MACA. It is just and reasonable for leave to be granted to commence the proceedings.

Costs

1. [45]

   Mr de Meyrick submitted that costs should follow the event and that the plaintiff should have his costs of bringing the motion. His fallback position was that costs be costs in the cause.

2. [46]

   Mr Catsanos submitted that the third defendant should have its costs, first because the plaintiff was seeking the indulgence of the court and second, because up until about midday of the hearing, it could not be said that the explanation was full, leaving to one side the issue of whether the explanation was satisfactory. I reject the first submission. Since the advent of the Civil Procedure Act 2005, plaintiffs will often if not usually get costs on such an application. Stein, mentioned above, is such an example. However, in my view there is some force to Mr Catsanos’s second submission. I agree that until the cross-examination of Mr Finney and Mrs Chapman (upon documents which were tendered in evidence), the explanation given was not full. Therefore, in my view the plaintiff ought not to have his costs of the motion.

3. [47]

   The first defendant submitted that their costs should be paid for by either the second or third defendant and the second defendant submitted that its costs should be paid for by the third defendant. Each of Mr Parker and Mr Parker SC expressed a fallback position that costs be costs in the cause.

4. [48]

   In an effort to do justice between all of the parties, I order that costs of and incidental to the plaintiff’s motion be costs in the cause.

Orders

1. [49]

   I make the following orders: -

   1. (1)

      Leave is granted to the plaintiff to proceed pursuant to section 109 of the Motor Accidents Compensation Act 1999.

   2. (2)

      Costs of each party be costs in the cause.

   3. (3)

      The matter is stood over to the registrar’s callover on 13 March 2023.

   4. (4)

      The third defendant is to file its defence within 28 days.